Milde has concluded that deontology is incomplete as an
approach to legal ethics. He now examines the possibility of supplementing
deontology with consequentialism (and remember, by “consequentialism” he
means utilitarianism.)

In particular, he considers the possibility of using
consequentialist ideas to resolve the conflict cases that are inevitable
under a wholly deontological approach. The idea is that you begin with a
deontological list of rules and principles that are usually to be
followed regardless of the consequences. But then, if conflicts arise, you decide
which duty is more important based on consequentialist reasoning. For
example:

·When faced with a conflict between the duty not to lie and
the duty to prevent harm (or to preserve life), we should choose the
course of action that will result in the greater increase in utility
(understood as happiness, well-being, or preference satisfaction).

·The lawyers in the Lake Pleasant Bodies Case should have decided
which duty to uphold—the duty to maintain attorney-client confidentiality
or the duty to reveal relevant physical evidence to the court—by
considering which course of action would raise overall utility more.

An advantage of the hybrid approach: It “is supported
by our ordinary expectation that all moral agents (including lawyers) will (and
should) take the consequences of their actions into consideration when deciding
how they should act.” (52) In other words, it’s what we expect people to do,
anyway, as well as what we already think they should do.

Anobjectionto the hybrid approach:

Once
one allows that consequences matter, and that they have the last word in
adjudicating conflicts, there is simply no reason not to go directly to a
calculation of relative consequences.Duties, on this view, turn
out to be defeasible suggestions about how best to maximize positive
outcomes: the real evaluative work is done by the consequences. (52)

In other words, once we introduce concern for
consequences, we practically abandoned deontology and the Kantian emphasis on
absolute moral rules. The “absolute duties” of Kant become mere defeasible
suggestions for how we should behave. [“defeasible” means capable of
being made void or of being annulled]

[2.4.2.] Act vs. Rule Utilitarianism.

At this point Milde brings up a widely discussed and debated
distinction between two different forms of utilitarianism:

act utilitarianism (df.):the morality of an individual action depends on whether that specific
action increases or decreases utility. If the action increases utility, it is
moral; if it decreases utility, it is immoral.

rule utilitarianism (df.): the
morality of an individual action depends on what rule the action follows. If in
general, following the rule increases utility, an individual action that
follows the rule is moral. If in general following the rule decreases utility,
an individual action that follows the rule is immoral

Act utilitarianism is the form of utilitarianism we have
been considering so far in this course (although I haven’t called it that).
In our thinking about utilitarianism, we have evaluated each individual action
based on its own consequences. If the action itself has good
consequences (and here “good” is understood in terms of maximized utility), then
it is morally good. If it has bad consequences, then it is immoral.

Instead of asking the
question, “What individual action will promote overall well-being?” a
rule utilitarian will ask: “What general patterns of behavior can I
engage in to promote overall well-being?” In other words, the emphasis will
be on identifying those rules which, if followed by people in general,
would result in maximized utility.

So an act utilitarian will approve of a specific action
(call it “A”) if A itself increases utility.

But a rule utilitarian could disapprove of A even if doing A
will increase utility, if in general (on average, on the whole) doing A would
decrease utility.

A well-known illustration of the difference between act
and rule utilitarianism[1]:
suppose that a Utilitarian is visiting a small town in the Midwest where there
is a great deal of prejudice against a local population of Muslims who have
immigrated from the Middle East. A young woman in the town is raped, and most
of the townspeople jump to the conclusion that a Muslim immigrant did it.
Violent riots begin, as the non-Muslim citizens begin demanding that the rapist
be caught and punished. Many people, both Muslim and non-Muslim, are injured in
the riots; some are killed. You can put an end to this violence and prevent
further bloodshed if you lie and say you saw the rape happen and know who did
it. Your perjured testimony will put an innocent man in jail and thus end
the riots, saving lives.

Act utilitarians and rule utilitarians will respond to the
case very differently:

·An act utilitarian will have to approve of giving false
testimony against an innocent person in this case, since it will have the best
overall consequences.

·But a rule utilitarian can say that it is wrong to give
perjured testimony against the innocent, even though it would result in good
consequences in this one case. It would be wrong because, in general,
giving perjured testimony against innocent people has bad consequences.

Milde will argue that “rule utilitarianism is a better
fit [for legal ethics] than act utilitarianism” (52), although even this
form of rule utilitarianism has significant problems.

[2.4.3.] Act Utilitarianism and Legal Ethics.

Milde argues that act utilitarianism is an inadequate
approach to legal ethics.

A
conception of legal ethics that gives lawyers carte blanche [i.e., “blank
check,” unrestricted power] to determine what they consider conducive to the
maximization of positive outcomes would, on many accounts, fail to
constitute any kind of ethical direction whatsoever. (53)

Imagine a criminal defense attorney who believes that it
would be in the best interest of society if her client were to go to jail,
perhaps because the client is a violent career criminal. So she decides that
the right thing to do is to build a very weak defense for her client, thus helping
to ensure that he goes to jail.

Even if the lawyer is right that overall utility would be
increased by her client going to prison, it still seems wrong for her to aim at
getting him sent there:

The
chief concern here need not be that the lawyer in question has made a faulty
calculation of the relative utilities. It is rather the sense that the
lawyer should not be involved in this kind of calculation at all because it
leads to a pernicious confusion of roles. In effect, even if the lawyer has
correctly calculated the relative outcomes of various courses of action, he/she
will have illegitimately usurped the roles of prosecutor, judge, and jury. The
lawyer needs to recognize that he/she is part of a system, and by
short-circuiting its procedures, the lawyer undermines the value of the system
as a whole. This insight gives rise to those wholesome and familiar
homilies to the effect that even vicious psychopaths deserve the benefit of
effective, committed legal representation. (53, emphases added)[2]

Argument #2: In deciding how to act on a given
occasion, an attorney must keep in mind that her actions on that occasion “have
implications beyond ... her own situation and affect the legal profession and
the legal system more generally.” (53)

·An attorney has general obligations to uphold principles of due
process, fairness, and justice, and her failure to live up to those obligations
on a given occasion can help to undermine the legal system itself.

·Act utilitarianism“augments the temptation to treat
the situation [at hand] as an exception, a singular confluence of
circumstances that is unlikely to be repeated, and so is unlikely to have any
effects beyond its immediate parameters.” (53) It can tempt an attorney
into thinking that, just this one time, in these special
circumstances (with this particular client, who is alleged to have
committed this particular crime), it would be morally good to elevate
considerations of utility over considerations of justice.

[2.4.4.] Rule Utilitarianism and Legal Ethics.

Milde now considers legal ethics as rule utilitarianism.

On this view, the ethical guidelines within which lawyers
are expected to operate (e.g., the ABA’s Model Rules of Professional Conduct)
are not absolute deontological duties which hold apart from considerations of
consequences. Rather, they are “rules that have been shown (or are generally
expected) to maximize positive outcomes overall (in the long run, all things
considered, etc.)”(53)

There is an advantage to takingrule
utilitarianism as our account of legal ethics, viz. it “combine[s] two
generally appealing commitments: first, a concern with adherence to duty, and
second, a concern with the consequences of one’s actions.” (54)[3]

Nonetheless, rule utilitarianism has distinct
disadvantages, which Milde conveys by returning to the Lake Pleasant Bodies Case. Consider once again the Model Rules
which came into conflict in that case:

Rule
1.6: Confidentiality of Information:
... A lawyer shall not reveal information relating to the representation of a
client unless the client gives informed consent ...

Rule
8.4: Misconduct: It is professional
misconduct for a lawyer to: ... commit a criminal act that reflects adversely
on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other
respects; ... engage in conduct involving dishonesty, fraud, deceit or
misrepresentation; [or] engage in conduct that is prejudicial to the
administration of justice; ...

Rule
3.4: Fairness to Opposing Party and Counsel: A lawyer shall not: ... unlawfully obstruct another party’s access to
evidence or unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value.

With regard to codes of ethics like the Model Rules
and to the laws themselves, there is an “underlying assumption that it is
adherence to the entire system of rules of conduct that generates maximally
positive outcomes. And, in some cases, at least [such as the Lake Pleasant case] the rules conflict.” (54) So rule utilitarianism runs into conflict
cases, just like the deontological approach.

Deontology does not have the resources to resolve these
conflict cases. Does rule utilitarianism?

Milde describes two options, but argues that neither
is satisfactory:

1.Appeal
to some other, higher-level rule—a rule about rules and how to decide
among them—in order to choose which rule to follow and which to break. Such
a higher-level rule would tell you how to rank or prioritize the more specific
rules. But this approach is problematic. The higher-level rule “would ...
have to be justified on the basis that it actually maximizes overall utility.
Clearly this is a very difficult claim to make out. On what basis could such a
determination be made?” (54)

·Milde’s point seems to be an epistemic one (“epistemic”
means having to do with knowledge or evidence). In actual practice it
would be extraordinarily difficult for a lawyer to know which kind of ranking
or prioritization would result in maximized utility.

2.Revertto act utilitarianism: prioritize the rule the following of which would
increase utility in the specific case at hand. But, says Milde, this
takes us right back to the problems with act utilitarianism we’ve already
considered, including that it increases the risk that lawyers will respond
arbitrarily to difficult cases.

--

Milde concludes this section of the article as follows:

Given
these kinds of considerations, it is not surprising that the empirical and
anecdotal evidence suggests lawyers look to peers and colleagues for moral
advice. Individual judgment seems to provide a precarious foundation for the
kind of moral investigations and determinations lawyers have to make in hard
cases. One person’s ability to work through all the possible implications and
consequences of a course of action is bound to be limited. So a broader
perspective, with more input, seems like a prudent way of proceeding. (54)

Mile will now argue that virtue ethics is the form of
normative ethics that makes that provides that broader perspective.

Stopping point for Friday August
20. For next time, continue reading the article by Milde (“Legal Ethics: Why
Aristotle Might be Helpful,” pp.55-60).

[2]
Milde says that psychopaths “deserve” effective legal representation, but this
claim is too strong. Moral desert—what someone deserves—is based on what he or
she has done in the past; prima facie, if you have behaved well in the
past, then you deserve good treatment now, and if you behaved poorly in the
past, then you deserve bad treatment now. But this sort of assessment works
only with regard to beings who are rational to some minimum degree, and that is
not frequently the case with genuine psychopaths. It would be better to say that
psychopaths should be given effective legal representation, whether or
not they deserve it.

[3]Milde mentions another advantage of rule
utilitarianism: it “holds out the hope that cases in which rules or directives
give conflicting guidance can be adjudicated by calculating the actual (or
probable) consequences of the various proposed courses of action.” (54)